K.G. Thimmappa Gowda and Others vs B. Sarojini Gowda and Others

This appeal is filed by the defendants by challenging the Judgment and Award passed in O.S. No. 98/1997 dated 23.8.2002.

For the sake of convenience the parties shall be referred to in terms of their status before the trial court.

The plaintiffs who are the widow and children of late Sheenappa Gowda filed a suit against Thimmappagowda and his children seeking partition of the plaint ''B'' schedule properties into two equal shares by metes and bounds and for accounts of the income of the property received by them after the partition deed dated 2.4.1986 and costs.

According to the plaintiffs, Sheenappa Gowda, Thimmappa Gowda and Chidananda as well as their father Sheshappa Gowda who are all members of a Hindu joint family which owned ancestral properties at Puttur Taluk. That the father of plaintiff Nos. 2 to 4 was working as a primary school teacher at Belthangady Taluk and was living away from the family. The first plaintiff was also working and was living away from the family. Since Sheshappa Gowda was aged, the affairs of the family were being managed by the first defendant; that Sheenappa Gowda had taken up property situated at Barya village and he and his wife-first plaintiff had improved the said lease hold property out of their income and also by obtaining loan from time to time. Sheenappa Gowda had also filed a declaration in Form No. 7 and he was granted occupancy right in respect of the said land. Subsequently, Patta was also granted in his favour. That since the first defendant and Chidananda were not getting on well, it was proposed to divide joint family properties and allot separate shares to Chidananda. Accordingly, the partition deed was entered into between Sheenappa Gowda for himself and on behalf of his minor sons, plaintiff Nos. 2 to 4, the first defendant and his minor son and Chidananda and his minor sons as well as their father Seshappa Gowda. The said deed of partition was registered on 2.4.1986. That the partition deed also contained clauses regarding repayment of a loan of Rs. 20,000/- obtained by late Sheenappa Gowda from his father to his two brothers and also to his father which was accordingly paid. ''A'' schedule property in the partition deed was jointly allotted to Sheenappa Gowda and his children and the first defendant and his son, while ''B'' schedule property in the said deed was allotted to Chidananda and his sons. In lieu of payment of Rs. 20,000/- to Chidananda and his sons, the family house was allotted to the sharers of ''A'' schedule property. There were other clauses regarding delivering 390 kgs of areca nuts to the father by his sons and that a sum of Rs. 7000/- had to be repaid. At the time of partition it was also concluded that the self-acquired lease hold property of Sheenappa Gowda at Barya village was not to be part of the partition and that after the partition, the possession of ''B'' schedule property mentioned in the deed was taken by Chidananda and the first defendant took possession of ''A'' schedule property on his behalf and also on behalf of Sheenappa Gowda. Subsequently, a sum of Rs. 10,000/- was paid by Sheenappa Gowda to the first defendant at the time of the marriage of the latter''s daughter in the year 1995 as per the terms of the partition deed. Sheenappa Gowda had executed General Power of Attorney on behalf of himself and his sons in favour of first defendant authorizing him to cultivate the property on 5.5.1986. But the first defendant continued to enjoy the entire ''A'' schedule property without giving any income to Sheenappa Gowda. The husband of the first plaintiff died intestate on 5.8.1996 and subsequently, there were talks regarding the share of the properties between the plaintiffs and the first defendant, but since the latter expressed an unfair opinion the plaintiff had got issued a legal notice dated 17.9.1996 terminating the power of attorney, in response to which the first defendant had sought for settlement of the matter by purchasing the share of the plaintiffs. But since the money offered was only a pittance, it was not accepted by the plaintiffs. Thereafter the first defendant sent an untenable reply to the notice falsely contending that he had borrowed certain loans for the improvement of the properties, but since all attempts to get the share of the plaintiffs had failed, another legal notice was sent on 17.7.1997 which was served on the first defendant, in response to which a Caveat petition was filed by him and a belated reply was sent. The plaintiffs hence sought for partition of the plaint ''B'' schedule properties.

After service of notice from the trial court, the first defendant filed his written statement admitting the fact that since their father had become aged, he was managing the family affairs since 1975. Though their father died only in 1989 and that the affairs of the family were managed by him as per the directions of his father, but had no control over the income. The property which was leased to the husband of the first plaintiff was tenanted land, but it is denied that there was any personal lease hold of Sheenappa Gowda. It was however admitted that Sheenappa Gowda had filed a declaration which was however on behalf of the joint family and though occupancy rights were granted in his favour, it had enured to the entire family and that considerable amounts were spent for the improvement of the said lease hold right and irrigation was provided by installation of pump set. The said property also has to be included as part of the suit and that the suit is bad for partial partition. That Chidananda wanted to separate himself and the rest of the family continued to be joint family, accordingly, power of attorney was made by Sheenappa Gowda as part of the arrangement. The plaintiff cannot seek partition of the Plaint ''B'' schedule properties without including the properties standing in the name of Sheenappa Gowda which are shown in X schedule to the written statement. That the first defendant had made improvements on the property as described in the T schedule to the written statement. That the children of Sheenappa Gowda were being educated by the first defendant and that Sheenappa Gowda died intestate at Barya village where he was living alone. While denying all other allegations first defendant sought dismissal of the suit.

A rejoinder was filed on behalf of the plaintiffs stating that the properties at Barya village was stated to be the personal lease hold of Sheenappa Gowda at the time of partition and therefore, the defendants were estopped from contending the family was joint and that the property were purchased out of their personal income. That the entire Plaint ''B'' schedule property was in the possession of the defendant and that no loan was obtained by the first defendant from one Guddappagowda.

In response to the said rejoinder, additional written statement was filed by the first defendant denying the contents of the rejoinder stating that the defendants are not answerable for any income with regard to 15 cents of the property as they were not in possession of the same nor were they liable to pay any mesne profits to the plaintiffs. The amount was borrowed from Guddappagowda as Yajman of the family and as power of attorney of late Sheenappa Gowda.

The second rejoinder was filed on behalf of the plaintiffs to the additional written statement stating that the deceased husband of the first plaintiff was the sole tenant of the land having been granted the occupancy rights and that the first defendant had nothing to do with the property at Barya village.

On the basis of the above pleadings, the trial court framed the following issues for its consideration:

Whether the first defendant has proved that the acquisition of ''X'' schedule properties of his written statement in Barya village by Sheenappa Gowda has inured to the benefit of the family as contended and therefore, without the inclusion of those properties for partition, the suit is bad for partial partition?

Whether the first defendant has proved that the General Power of Attorney executed by Sheenappa Gowda is irrevocable despite of the fact that he is dead?

What the actual annual income from the plaint ''B'' schedule properties?

Whether the suit is baa for nonjoinder of necessary parties, viz., one Balakrisnna Gowda and Rukmini?

Whether the suit has not been valued properly for payment of court fee and jurisdiction?

What is the improvement made on the plaint ''B'' schedule properties and ''X'' schedule properties of the written statement of the first defendant?

Whether the improvements on ''X'' schedule properties of the first defendant''s written statement are out of the family funds?

What are the debts which exists on the plaint ''B'' schedule properties?

Whether the plaintiff is entitled for accounts?

Whether the plaintiff is entitled for partition and separate possession of his share in the plaint ''B'' schedule properties as prayed for?

What order and what decree?

Additional issues:

Whether the plaintiffs have proved that all the properties of the plaint ''B'' schedule are in the possession of the defendants?

Whether this court has no jurisdiction to entertain the suit in view of the contention raised by the 2nd defendant in para 9-A of his written statement?

In order to prove their case, the plaintiffs examined PW.12 and got marked Ex.P1 to P23 while the defendants examined DW.1 to 3 and got marked Ex.D1 to D11. A copy of the order was passed by the Assistant Commissioner was marked on Ex.C1. On the basis of the above material, the trial court answered issue No. 1, 2, 4, 7 and additional issue No. 2 in the negative and issue Nos. 9. 10 and additional issue No. 1 in the affirmative and kept open issue Nos. 3 & 6 and decreed the suit.

The trial court decreed the suit of the plaintiffs by declaring that the plaintiffs are entitled to one-half share in the plaint ''B'' schedule properties and also mesne profits and issue No. 3 with regard to income and issue No. 6 regarding improvement effected in ''B'' schedule were kept open for decision in the final decree proceedings. The said preliminary decree is challenged by the defendants in this appeal.

We have heard the learned Counsel for the appellants and learned Counsel for the respondents.

It is contended on behalf of the appellants that the trial court ought to have dismissed the suit seeking only a partial partition since ''X'' schedule properties in the written statement were not made part of the plaint schedule. When there was no partition between the plaintiffs and defendants after 1986, any property acquired or standing in the name of joint family members is liable to be taken for partition. The trial court therefore erroneously answered issue Nos. 1, 2, 4, 7 and additional issue No. 2 in the negative and issue Nos. 9 and 10 as well as additional issue No. 1 in the affirmative. Hence the Judgment and Decree ought to be set aside and the suit of the plaintiff has to be dismissed.

Per contra, supporting the Judgment and Decree of the trial court, Counsel for the respondents submitted that the trial court was justified in taking into consideration the registered partnership deed dated 2.4.1986 as the basis for decreeing the suit and that as per the said partition deed, the plaintiffs are entitled to one-half share in the plaint ''B'' schedule property and since they were deprived ct their share in the income of the said properties from the time of partition, the plaintiffs are entitled to mesne profits also and hence the Judgment and Decree does not call for any interference.

Having heard the Counsel on both sides, the following points arise for our consideration:

Whether the suit filed by the plaintiff was not maintainable as properties mentioned in ''X'' schedule to the written statement had not been included as part of the suit schedule properties and therefore, the suit is bad for partial partition?

Whether the plaintiffs are entitled to partition and separate possession of their share in Plaint ''B'' schedule properties?

What order?

From the material on record it is not in dispute that the parties to the suit at one point of time belonged to Hindu undivided family and that the male members of the family had a share in the joint family properties. It is also not in dispute that certain properties are standing in the name of late Sheenappa Gowda. However, in order to answer the points raised in this appeal, it is necessary to re-appreciate the oral and documentary evidence on record.

PW.1 is the wife of late Sheenappa Gowda who is the first plaintiff and mother of plaintiff Nos. 2 to 4. In her deposition she has stated that her husband was a retired primary school teacher who died on 5.8.3996 and that first defendant is the younger brother of her husband and defendant Nos. 2 to 6 are his children. During the life time of her father-in-law there was a partition of the properties under a registered deed which is with the first defendant and certified copy of the same was produced as Ex.P1 during which time, her husband was residing away from the family house as he was in service. At the family partition the properties were divided into three shares allotting two shares jointly to the first defendant and to her husband and the third share to the younger brother and her father-in-law did not retain any share, but that the children were to maintain their father. With regard to the debts also arrangements were made in the partition. The properties allotted to her husband were given in possession of first defendant and in order to manage the said properties her husband had executed a power of attorney, the original of which is with the first defendant, but the first defendant at no point of time had paid anything towards her husband''s share of the income.

According to PW.1 her husband had certain lands at Barya village, the occupancy rights of which were given to him by the Land Tribunal. That one Mallaiah Shetty was cultivating the said properties before her husband took them on lease. She has produced Ex.P2 to P10 to evidence the fact that her husband was cultivating the land and thereafter occupancy rights were given to him by the Land Tribunal. She has denied that her husband had purchased the Barya properties for which a sum of Rs. 20,000/- was paid by his brothers and has asserted that at the time of partition, the Barya properties were stated to be the absolute properties of her late husband. The other financial arrangements made under the partition deed are also spoken to by PW.1. The RTC extracts of plaint ''B'' schedule properties are produced as Ex.P12 to PI7. According to PW. 1, after the death of her husband a notice was sent to the first defendant calling upon him not to act on the power of attorney executed by her deceased husband and a demand was made to give the plaintiffs their share in the plaint ''B'' schedule properties and since the defendant failed to give the deceased husband''s share in the ''B'' schedule properties, the suit was filed. The documents pertaining to the notice and acknowledgment are produced at Ex.P18 to P21. According to PW.1 the entire plaint ''B'' schedule properties are in possession and enjoyment of the first defendant and Balakrishna and Rukmini are not in possession of 15 cents of the said land.

In her further examination-in-chief she has stated that her father-in-law died a year after the partition and after the death of her husband RTC of Barya village property are in her name as well ay in the name of her children. That in the year 1980 when she was on training, her children attended school from the family house and thereafter the children continued their studies in Puttur by staying in her elder sister''s house. Ex.P22 is the death certificate and P23 is the letter written by defendant No. 1. Ex.C1 is the copy of the order of the Assistant Commissioner.

In her cross-examination she has stated that she worked at various places as a teacher and since 1971 the children were residing at Barya village on the Geni land where there was a small house and that after MaDaiah Shetty had surrendered the lease, her husband had take a the property on lease. That improvements were made on the property by taking loan from Barya Society apart from contributing their salary income. A loan of Rs. 20,000/-borrowed from her father-in-law was repaid. The loan was borrowed in the year 1980 and repaid in the year 1986.

With regard to the partition dead she has stated that there were negotiations held fifteen days prior to the execution of the partition deed and the witnesses have attested the deed and that she was also present when the deed was entered Into. According to PW. 1 her husband never asked accounts of the income of the properties (joint family properties) and it was the first defendant who was paying maintenance of their father. After partition the entire wet land has been converted into garden land, but her husband never asked the first defendant about the expenses incurred by him for raising the garden land. She has denied the suggestion that since Barya property was retained by her husband, his share in the suit property has to be retained by the first defendant. Though the power of attorney was executed, the first defendant could not borrow any loan on the strength of it. That the first defendant had met the expenses towards the maintenance of his father and also his funeral expenses and that her husband had paid a sum of Rs. 10,000/- to the first defendant in the year 1995. She has denied the suggestion that DW 2 & 3 worked on the Barya property or that first defendant had got the Areca plants planted in the said land or that her father-in-law was getting the work done in Barya properly through the first defendant.

On the other hand, DW.1 in his examination-in-chief has admitted the family partition of 1986 as per Ex.P1 and also the allotment of shares. However, it is his say that Sheenappa Gowda did not pay the maintenance amount to his father and also did not pay the amount of Rs. 5000/- to his other brother Chidananda as per Ex.P1.

As far as the Barya property is concerned DW.1 has stated that his father had decided to purchase the said property instead he had asked Sheenappa Gowda to file a declaration and accordingly occupancy right was granted to Sheenappa Gowda but it is not his self-acquired property as he had neither taken the said property on lease in his name nor was it in his exclusive possession and that the grant of occupancy right was on behalf of the family. His father had paid a sum of Rs. 25,000/- to Sheenappa Gowda for improvement of the said property. According to Dw. 1 there was an oral understanding between himself and late Sheenappa Gowda that he should retain the entire plaint ''B'' schedule property and late Sheenappa Gowda should retain the Barya property as his share. Rut the said understanding was not incorporated in the partition deed and that it was agreed that a separate document would be entered into regarding Barya property after a lapse of fifteen years. Hence the partition deed ''B'' schedule property also has to be included as part of the partition and the same is marked as ''X'' schedule in the written statement. That Sheenappa Gowda, had executed a power of attorney in favour of DW. 1 for management of Barya property. That DW. 1 had filed Form No. 7-A before the Deputy Commissioner in the year 1999. The documents marked on behalf of DW.1 are receipt executed by Chidananda for a sum of Rs. 20,000/- as Ex.D1. RTC extracts of Barya property as per Ex.D2 to D9 and a copy of Form No. 7-A and its postal acknowledgment as per Ex.D10 and D11 respectively.

In his cross-examination DW.1 has admitted the death certification of his father and the same was marked as Ex.P22. He has stated that he does not know if his application under Form No. 7-A has been dismissed. That the payment of Rs. 20.000/- by his father to late Sheenappa Gowda is not recited in the partition deed which amount was used for payment to the landlord. With regard to the recitals in the partition deed regarding the financial arrangements made between the parties, DW.1 has admitted the same. However, he has denied that it was decided that the Barya properties were the exclusive properties of late Sheenappa Gowda, and other members had no right over it and the same was recorded in the partition deed. According to DW.1 no decision was taken regarding the Barya properties. He has also admitted that the payment shown under Ex.D1 is the amount recited in Ex.P1 partition deed. He has also admitted that the areca nut amount which was paid to his father was out of the proceeds of joint family properties of himself and late Sheenappa Gowda and so also payment of Rs. 20,000/- made by him to Chidananda was out of the said income. He has also admitted that Ex.P3, P4 as well as P5. But according to him the occupancy right was granted not in respect of Sheenappa Gowda only but on behalf of the family and that the said orders were passed before partition. DW. 1 has also admitted about the execution of power of attorney by his father which had been produced to the PCLD Bank, Puttur to raise a loan for Rs. 30,000/- for irrigation purpose to order to cultivate the agricultural lands jointly allotted to the share of himself and Sheenappa Gowda and that, the latter had also executed the power of attorney in his favour, DW.1 has also admitted that on the basis of power of attorney he had improved the lard converting it into areca nut garden land, installing sprinkler set, digging a tank etc. The power of attorney executed was to cultivate the properties allotted jointly to his share and to the share of late Sheenappa Gowda as per Ex.Pl partition deed. DW.1 has also admitted that he docs not know the amount spent for improving the Barya properties nor does he know the nature of improvements made on the said properties and also he does not have any documents to show that he was in cultivation of the said properties or as to who was cultivating the said property before Sheenappa Gowda started cultivating it. He has also denied that a sum of Rs. 10,000/- was paid by Sheenappa Gowda to him for the year 1990 so as to comply with the terms of Ex.P1 the partition deed. In his further cross-examination he has admitted that at the time of marriage of his daughter in the year 1995 he has received Rs. 8,500/- with interest from Sheenappa Gowda.

Dw.2 is resident of Koltige village who has stated that about 60kms away from Koltige village, there was some ether property and that the first defendant and his father used to engage him for coolie work at that property and on one occasion in a hired jeep 1000 areca nut seedlings were transported twice. In his cross-examination he has also does not know whether the property belongs to Sheenappa or to someone else. His evidence is of no assistance to the defendants.

DW.3 has staled that the first defendant''s father was in possession of certain properties in Barya village and he was in cultivation of the same by effecting improvements thereon. DW.3 along with three other labourers were going to Barya property 4 to 5 times a year and first defendant''s father paid to them wages. In his cross-examination he has stated that he cannot say the extent of the Barya properties or whether it was in one block or in different blocks or the number of areca plants planted in the said property or the extent of the land. He has stated thai he is attending to coolie work in Koltige properties for the first defendant for the last twenty years and does not know as to how the Barya properties have been acquired. This evidence also does not further the case of defendants.

Point No. 1 is with regard to the maintainability of the suit, since the ''X'' schedule properties annexed to the written statement of defendant No. 1 had not been included as part of the suit schedule properties and therefore, the suit is bad for partial partition. These properties are in Barya village and according to defendant No. 1 though they were acquired in the name of Sheeviappa Gowda, they are for the benefit of the entire family and that when making the said properties as part of the plain schedule properties available for partition amongst the parts of the joint family, the suit could net nave been maintained. Defendant No. 1 has also stated that in respect of these lands as per the Karnataka Land Reforms Act, Form No. 7 was filed in the name of Sheenappa Gowda and by a consent order occupancy right was granted in his name and in view of the fifteen year non-alienation period pursuant to the grant of occupancy right, there was an understanding that defendant No. 1 would enjoy the ''B'' schedule properties and Sheenappa Gowda would enjoy the Barya properties as his share and therefore, the power of attorney was executed in favour of defendant No. 1. On the other hand it is the contention of the plaintiffs that since Sheenappa Gowda was working as Primary School Teacher at various places including Aladangady, he had taken the Barya properties as Chalageni lease and later occupancy rights were granted in his name and that plaint ''B'' schedule properties or ''A'' schedule properties which were jointly allotted to Sheenappa Gowda and first defendant and therefore, the division of the said properties has to be taken place. According to the plaintiffs Barya properties were exclusive and absolute properties of Sheenappa Gowda and the same is evident in Ex.P1. DW. 1 has however admitted the family partition as per Ex.P1 a share as per Ex.P1 was jointly allotted to him and Sheenappa Gowda and at para 12 of Ex.P1. it is mentioned that the Barya properties are the self acquired properties of Sheenappa Gowda and occupancy rights have been conferred on him. Ex.P6, P7, P8 and P9 as well as Ex.P10 pertain to Barya land and these documents stand in the name of Sheenappa Gowda. Ex.P2, P4 & P5 in the absence of any other documentary evidence, clearly established that the ''X'' schedule properties to the written statement which are the Barya properties are the exclusive properties of late Sheenappa Gowda. In fact an attempt made by defendant No. 1 to file Form u/s 77-A of the Karnataka Land Reforms Act was rejected as per Certified Copy of the order as per Ex.C1 on the ground that the said land had already been granted in favour of Sheenappa Gowda, husband of first plaintiff and father of plaintiff Nos. 2 to 4. That apart DW.2 & 3 examined as coolies who were engaged to improve the Barya properties have deposed before the court, but their evidence do not in any way assist the case of defendant, as there are not only discrepancies in the said evidence but do not speak about the ownership of the said properties. Therefore, point No. 1 is answered against defendant No. 1 (appellant herein) as the Barya properties (''X'' schedule to the written statement) cannot be considered to joint family properties. Therefore, the non-mention of the said properties as part of the plaint schedule is not fatal to the suit and accordingly, point No. 1 is answered against the appellants.

As far as point No. 2 is concerned, according to the plaintiffs, plaint ''B'' schedule properties were allotted jointly to the Sheenappa Gowda and first defendant under partition deed, but defendant No. 1 was alone managing the said properties on the basis of the power of attorney executed by Sheenappa Gowda in favour of first defendant which fact is not disputed. As per Ex.P12 to P17 the entire extent of plaint ''B'' schedule are in the possession of the first defendant. According to the plaintiffs, the first defendant was not paying any income out of the said properties and that they are entitled to their share in the said properties.

In fact Ex.P1, the partition deed categorically states that the share of late Sheenappa Gowda and the first defendant was jointly allotted under the said partition deed and the other portion was allotted to Chidananda, the other brother of the aforesaid persons. This aspect is admitted by DW. 1 in his evidence. Therefore, there has to be a partition by metes and bounds in respect of the ''A'' schedule property to the partition deed which is plaint ''B'' schedule property.

In view of the contents of Ex.P1 we are of the view that the trial court was justified in answering issue No. 8 correctly and issue Nos. 9 & 10 in the affirmative. We also approve all the other reasons given by the trial court. Accordingly, point No. 2 is answered in favour of the respondents.

For the aforesaid reasons, the appeal is dismissed. The Judgment and Decree passed by the trial court is confirmed. Parties to bear their own costs.